United States v. Phillips

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4139
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WYNN STEPHEN PHILLIPS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (3:04-cr-00463-MJP)
Submitted: October 11, 2006 Decided: November 7, 2006
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James B. Babb, HOWLE & BABB, LLP, Sumter, South Carolina, for
Appellant. Reginald I. Lloyd, United States Attorney, Stacey D.
Haynes, Assistant United States Attorney, Columbia, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Wynn Stephen Phillips appeals from the twenty-four month
sentence imposed pursuant to his guilty plea to selling a firearm
to an out-of-state resident. He asserts that his guideline range
was miscalculated and that his sentence was unreasonable. We
affirm.
I.
Phillips first contends that the district court erred in
failing to calculate his offense level based on the fact that he
was a firearms collector under U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(2) (2004) (providing for reduced offense level if
defendant possessed “all ammunition and firearms solely for lawful
sporting purposes or collection”). The commentary to the
guidelines provides that, while determining whether the firearms
were possessed for collection purposes, the court should consider
the surrounding circumstances, including the number and type of
firearms, the amount and type of ammunition, the location and
circumstances of possession, the nature of defendant’s criminal
history, and the extent to which possession was restricted by local
law. USSG § 2K2.1(b)(2), cmt. (n.7). We find that the plain
language of the guideline and the commentary support the conclusion
that Phillips was not eligible for the § 2K2.1(b)(2) reduction
because he was involved in selling firearms. United States v.
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Miller, 224 F.3d 247, 251 (3d Cir. 2000) (holding that the
guideline requires that the firearms be possessed only, not sold,
transferred, or used); see also United States v. Clingan, 254 F.3d
624, 625-26 (6th Cir. 2001) (affirming district court’s denial of
the reduction where defendant sold guns to pawnshops to generate
cash).
Moreover, even if the nature of Phillips’ conviction were
not sufficient to bar application of the guideline, the
circumstances of this case do not support the conclusion that the
firearms and ammunition were possessed “solely” for collection
purposes. All the factors in the commentary cut against Phillips.
He possessed numerous firearms, including a machine gun and a
silencer, and over 9,000 rounds of ammunition; he was actively
involved in marketing and selling firearms; and he was a convicted
sex offender prohibited from possessing firearms. These
circumstances indicate that Phillips’ possession was, at least in
part, for the purpose of illegally selling firearms. Moreover,
during Phillips’ plea colloquy, the Government provided, as part of
the factual basis, that Phillips was not a collector. Phillips
agreed that the factual basis was true. Accordingly, the district
court properly determined that Phillips was not eligible for a
reduction in his offense level for possession of the guns as a
“collector.”
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II.
Phillips next contends that the district court improperly
enhanced his sentence based on his possession of guns which were
the subject of counts dismissed pursuant to his plea agreement. He
asserts that this fact-finding was inappropriate after United
States v. Booker, 543 U.S. 220 (2005), and that it violated his
plea agreement. However, sentencing courts have always maintained
the power to consider the broad context of a defendant’s conduct,
even when the court’s view conflicts with a jury verdict, see
United States v. Watts, 519 U.S. 148, 152 (1997), and Booker did
“not in the end move any decision from judge to jury, or change the
burden of persuasion.” United States v. Morris, 429 F.3d 65, 72
(4th Cir. 2005), cert. denied, 75 U.S.L.W. 3167 (U.S. Oct. 2, 2006)
(No. 05-11378). Finally, the plea agreement explicitly provided
that, although the remaining counts of the indictment were
dismissed, there was “no limitation” on the district court’s
consideration of Phillips’ background, character, and conduct for
purposes of imposing sentence. Thus, the court did not err in
determining that Phillips was responsible for firearms that were
the subject of dismissed counts.
III.
Finally, Phillips contends that his sentence was
unreasonable because the district court did not make explicit
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findings regarding his “collector” status and did not provide
reasoning for choosing the imposed sentence. With regard to his
collector status, Phillips asserts that the district court failed
to make the findings of fact required by his objection. However,
there were essentially no disputed facts. The only issue in
dispute was whether the facts of the case supported a finding that
Phillips was a “collector” under the meaning of USSG § 2K2.1(b)(2).
When the district court overruled Phillips’ objection, the court
implicitly decided that Phillips did not meet the guideline
requirements.
The determination of whether Phillips’ circumstances
permitted a reduced offense level under USSG § 2K2.1(b)(2) is a
question of law that is reviewed de novo. United States v.
Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989). Thus, explicit
findings by the district court are not necessary for meaningful
appellate review. As discussed above, the district court correctly
concluded that the guns were not possessed solely for collection
purposes.
Turning to Phillips’ claim that the district court
provided insufficient reasoning for choosing a twenty-four month
sentence, we have held that a sentencing court is presumed to have
considered the factors set out in § 3553(a) unless the record
indicates otherwise, and that it need not specifically address each
factor. United States v. Legree, 205 F.3d 724, 728-29 (4th Cir.
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2000) (dealing with denial of motion to reduce sentence); see also
United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006) (“district
court need not explicitly discuss every § 3553(a) factor on the
record”), petition for cert. filed (June 20, 2006) (No. 05-11659).
Here, the district court explicitly stated that it considered the
§ 3553(a) factors, as well as Phillips’ background, the arguments
of counsel, and the guideline range. Phillips has presented no
reason to doubt the veracity of the court’s statement, and thus, we
conclude that Phillips’ sentence was reasonable.
Accordingly, we affirm Phillips’ sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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